Misleading Advice in Accident and Emergency – New Case Decision
In a recent case the Supreme Court held a hospital liable for the negligence of its receptionist in giving wrong advice about waiting times in Accident and Emergency. Here Enable Law partner Paul Sankey looks at how this decision will affect medical negligence law.
Darnley v Croydon Health Services NHS Trust
Michael Darnley was 26 when he was assaulted and hit over the head. A friend drove him to the Emergency Department of Mayday Hospital in Croydon. They arrived at 20:26.
Mr Darnley told the receptionist he had a head injury, felt very unwell and that his head was hurting. He thought he needed to be seen urgently (and he was right). The receptionist apparently had ‘a helpful attitude’. She told him to sit down and said he would have to wait 4 or 5 hours for a doctor. He was worried he was about to collapse. She said that if he collapsed he would be treated as an emergency.
He sat down and waited for a short while but he felt too unwell to stay. He decided to go home and take paracetamol. He left after 19 minutes at 20:45 without telling the receptionist. Had he waited he would have been seen by a triage nurse within half an hour.
His friend took him to his mother’s house, arriving shortly after 21:10. He went to bed but felt worse. An ambulance was called and arrived at 22:05. He was taken back to the hospital but deteriorated on the way. He arrived back at the Emergency Department at 22:38. A CT scan showed a large extra-dural haematoma (bleeding in the brain) with marked midline shift (a sign of a serious condition). He was transferred to St Georges Hospital Tooting and underwent surgery at 01:00 to remove the haematoma.
Sadly he was left with permanent brain damage and severe, disabling hemiplegia (one-sided weakness).
He brought a claim for damages against the Trust responsible for Mayday Hospital. He alleged that the receptionist’s advice that he would have to wait 4 or 5 hours was wrong and was the reason for him leaving. The judge found that had he stayed he would have been seen within 30 minutes and admitted or asked to wait. He would still have suffered his collapse but in hospital and he would have got to surgery earlier. Without even a relatively short delay he would have avoided the devastating brain damage.
The judge thought it foreseeable that someone told he would have to wait 4 or 5 hours to see a doctor may decide to leave, whereas if told he would be seen by a triage nurse within 30 minutes he would have stayed. However, he found that the reception staff were not under a duty to give accurate information about waiting times and were not responsible for harm where their advice was wrong. Further it was not the receptionist’s advice that caused harm: it was Mr Darnley’s decision to leave.
The Supreme Court Decision
The claim was appealed first to the Court of Appeal and then the Supreme Court. The Court of Appeal agreed with the trial judge but the Supreme Court took a different view.
1. Were hospital staff under a duty to give accurate information (or at least, are they under a duty not to give inaccurate information)?
The trial judge thought the reception was only under a duty to complete registration forms. Providing information was no more than a courtesy to patients. It was not done to fulfil a legal duty. There was no liability if the information was wrong. In the Court of Appeal, two of the Lord Justices (Jackson and Sales) agreed. Lord Justice Jackson thought imposing such a duty would add a new layer of responsibility to clerical staff and a new ground of liability for NHS trusts. This risked opening the floodgates to claims.
The Supreme Court disagreed. This was not a case of imposing a new ground of liability. Mr Darnley had been accepted into the system and entered a relationship with the hospital Trust. The courts had long found Emergency Departments to have a duty to take reasonable care of patients. The Trust had a duty to take reasonable care not to provide misleading information which may foreseeably cause physical injury.
2. Is there a distinction between medical and non-medical staff?
The Supreme Court said that the duty was owed by the hospital staff, medical or non-medical. What was expected from people performing different roles was of course quite different – the degree of skill expected will vary according to their level of responsibility.
3. Had the receptionist in fact breached her duty?
What is expected of a member of staff will depend on the task they are performing. The required standard was that of an averagely competent and well-informed emergency department receptionist. It was reasonable to tell patients that they would normally be seen by a triage nurse within 30 minutes. Instead Mr Darnley was wrongly told he would have to wait up to 4 or 5 hours. The trial judge had found that given such advice a patient may decide to leave. It followed that the receptionist’s advice breached her duty.
4. Did the breach of duty cause Mr Darnley’s loss?
The trial judge found that Mr Darnley suffered loss because of his decision to leave rather than the receptionist’ incorrect advice. The Court of Appeal agreed. As Lord Justice Jackson said, ‘there comes a point where people must accept responsibility for their own actions. The claimant was told to wait. He chose not to do so. Without informing anyone of his decision, he simply walked out of the hospital’.
Again, the Supreme Court disagreed. The Court of Appeal’s reasoning failed to take into account the impact of the receptionist’s advice on Mr Darnley. The trial judge had made 3 significant findings of fact. First, Mr Darnley would have stayed had he been told he would be seen within 30 minutes. Secondly, his decision to leave was made in part on the basis of incorrect information. Thirdly, it was reasonably foreseeable that a person told he would not see a doctor for 4 to 5 hours may leave the department.
The appeal therefore succeeded and Mr Darnley was entitled to damages.
The facts of the decision are unusual. There will not be many cases where a delay of only a couple of hours will result in serious harm. However, the decision is significant in clarifying an important legal principle: it is not only medical staff who are under a duty to take reasonable care towards patients. What is expected of staff performing different roles will in practice vary. But all are under a duty.
The decision also reaches a sensible conclusion as to what is in fact is expected of reception staff. In doing so the Supreme Court rejected some rather alarmist views expressed in the Court of Appeal. For instance Jackson LJ foresaw the floodgates opening with new claims against Emergency Departments (and this seems somewhat unlikely). Sales LJ was concerned that it would not be just or reasonable ‘to impose a duty of fine-grained perfection’. For instance it would be unreasonable to expect receptionists to find people who been previously advised about waiting times when that information turned out to be incorrect, for instance because there was a sudden influx of more urgent patients. But no one was arguing for such a duty. A duty to tell patients they would normally be seen for triage within 30 minutes is hardly a duty of ‘fine-grained perfection’.
The Supreme Court’s decision is a sensible one which upholds the rights of patients to recover damages where they are injured by negligent management without imposing more responsibility on the staff of emergency departments to take reasonable care.